Academic journal article The Yale Law Journal

Stare Decisis and Secret Law: On Precedent and Publication in the Foreign Intelligence Surveillance Court

Academic journal article The Yale Law Journal

Stare Decisis and Secret Law: On Precedent and Publication in the Foreign Intelligence Surveillance Court

Article excerpt

In the wake of the Snowden disclosures, both Congress and the public have taken a harder look at the work of the courts created by the Foreign Intelligence Surveillance Act (FISA), focusing in particular on the "secret body of law" (1) they have created in the process of authorizing, modifying, and denying government surveillance requests. Numerous commentators have bemoaned both the FISA courts' secretive nature and the content of specific legal interpretations revealed in their leaked opinions. (2) But an overlooked yet fundamental problem with the FISA courts' work is that judge-made law can be generated only through stare decisis, (3) a doctrine that we argue is not justified when applied to secret opinions of the type the FISA courts produce. As a result, we conclude that the FISA courts should either publish all opinions that are precedential or cease writing precedential opinions at all.

This Comment joins other work in arguing that the legitimacy of stare decisis depends upon widespread publication. (4) The doctrine of stare decisis itself emerged only with the consistent and reliable publication of court opinions, (5) and legal processes that do not result in the issuance of publicly available opinions, such as settlements and arbitrations, generally lack stare decisis norms altogether. (6) Although previous scholarship has discussed the proper role of stare decisis in the context of "unpublished" opinions, (7) which make up around eighty percent of all United States courts of appeals opinions (8) (and are usually publicly available despite their name), (9) this Comment provides the first examination of the tenability of stare decisis as applied to truly secret opinions like those of the FISC. Many have noted that stare decisis typically comes with both costs and benefits. But, we argue, in the absence of publication these costs are exacerbated and the benefits are substantially reduced. Therefore, without publication, stare decisis becomes harder to justify and should be avoided when it comes to truly secret opinions of the type the FISA courts produce.

Part I provides general background on the FISA courts and examines when and how they generate binding precedent. Part II proceeds by discussing the nature of stare decisis : its central role in creating judge-made law and its costs and justifications, particularly as applied to secret opinions. We ultimately determine that FISA judges should either label an opinion as binding precedent and publish it or mark the opinion as non-precedential and retain discretion not to publish it. Part III concludes with concrete recommendations for implementing our suggestions in the FISA courts.

I. PRECEDENT IN THE FOREIGN INTELLIGENCE SURVEILLANCE COURTS

A. The Foreign Intelligence Surveillance Court

The Foreign Intelligence Surveillance Act, enacted in 1978, (10) sets up the Foreign Intelligence Surveillance Court (FISC), a specialized Article III court with the power to hear and grant government requests for foreign surveillance. (11) The FISC's work consists almost entirely of ex parte proceedings granting, modifying, and denying government requests for the authority to conduct surveillance or searches, or to compel the production of tangible things. (12)

Pursuant to the statute, the FISC consists of eleven Article III district court judges, selected by the Chief Justice of the United States. (13) All applications are considered by a single judge and cannot be reheard by another judge of the FISC except when the court sits en banc. (14) FISA provides for both en banc consideration and appeals to the Foreign Intelligence Surveillance Court of Review (Court of Review). En banc review involves a panel of all eleven FISC judges and must be ordered by a majority of the FISC judges based on a determination that "(i) en banc consideration is necessary to secure or maintain uniformity of the court's decisions; or (ii) the proceeding involves a question of exceptional importance. …

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